Effective as of May 23, 2016
I. IP Ownership; License
1. IP Ownership. Unless otherwise set forth in this Agreement, all text, logos, page headers, scripts, images, sounds, code, illustrations, designs, icons, photographs, video clips, and other materials that are part of this Website (collectively, the “Contents”), including the design, structure, selection, coordination, expression, “look and feel,” and arrangement of any Contents, are copyrighted works, trademarks, trade dress, or other intellectual properties owned, controlled, or licensed by First Capital, its subsidiaries, affiliates, successors and/or assigns. The Website as a whole is protected by copyright and trade dress, all worldwide rights, titles and interests in and to which are owned by First Capital, its subsidiaries, affiliates, successors and/or assigns. Other trade names, copyrighted materials, and trademarks contained on the Website appear with the permission of their respective owners. No express or implied right, title or interest in any of the Contents, the Website, downloaded materials, or software is transferred to You as a result of your use and access of the Website.
2. License. First Capital hereby grants You a personal, revocable, limited, non-exclusive, royalty-free, non-sublicensable, worldwide, non-transferable license to use and access the Website and the Contents contained thereon subject to Your compliance with the terms and conditions of this Agreement. Except as specifically authorized in this Agreement, You may not reproduce, store, publish, frame, transmit, distribute, display, alter, modify, translate, decompile, disassemble, broadcast, create derivate works from, rent, lease, license, sublicense, sell or exploit in any way, in whole or in part, any of the Contents, the Website, or any related software without the express written consent and approval by First Capital.
II. Information Protection
1. User Restrictions. In order to maintain the integrity and security of the Website, You understand and agree that You may not use any “deep link,” “robot,” “spider,” or any other automatic device, program, script, algorithm, or methodology, or any similar or equivalent manual process, to access, acquire, copy, or monitor any portion of the Website or in any way reproduce or circumvent the navigational structure or presentation of the Website to obtain or attempt to obtain any Contents, materials, documents, or information through any means not purposely made available on the Website and otherwise expressly authorized by First Capital. You are also expressly prohibited by First Capital from engaging in the following conduct or activities in connection with your use and access of the Website:
a. Data mining, harvesting, or collecting email addresses or other personal identifiable information of other users of the Website by any method or means for the purpose of sending unsolicited emails or other unsolicited communications;
b. Any use or access of the Website that may cause damage, harm, disablement, or overburden of the Website or any First Capital systems, services, or networks connected to the Website;
c. Impersonating any person or entity, disguising Your identity, or misrepresenting or falsifying by any means any information provided by You to First Capital.
d. Uploading, posting, transmitting, sharing, storing, or otherwise making available any malicious code, files, or programs that are intended to interrupt, interfere, impair, or destroy the functionality or operation of the Website or any computer or other equipment used by First Capital or other users to operate, access or use the Website;
e. Your use or attempted use of another user’s account without the consent of that user or by First Capital;
f. Attempting to gain unauthorized access to any portion or feature of the Website, or any First Capital systems, services, or networks connected to the Website, by hacking, password “mining,” or any other illegitimate or prohibited means;
g. Probing, scanning, or testing the vulnerability of the Website or any First Capital systems, services or networks connected to the Website;
h. Breaching the security or authentication measures on the Website or any First Capital systems, services, or networks connected to the Website; and
i. Providing material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designed by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act.
2. Enforcement. Actual or attempted unauthorized use of the Website may result in criminal and/or civil prosecution. First Capital reserves the right, in its sole and absolute discretion and at any time and without due cause, notice or permission from You, to (a) view, monitor, and record activity on the Website, and (b) modify, restrict, suspend, or terminate Your access and use of the Website, or any portion thereof. First Capital assumes no responsibility or liability arising from such restriction, suspension or termination of Your access or use of the Website. First Capital will fully cooperate with any law enforcement authorities or court order requesting or directing First Capital to disclose the identity of anyone using or accessing the Website in violation of the terms and conditions of this Agreement.
III. Registration, User Contents, Control
1. Registration. Registration to the Website is void where prohibited. You must be eighteen (18) years of age or older to register, use and access the Website. Any registration, use, or access of the Website by anyone under eighteen (18) years of age is unauthorized, unlicensed and in violation of the express terms and conditions of this Agreement. By registering, using, and/or accessing this Website, You represent and warrant that You are eighteen (18) years of age or older. You represent and warrant that the execution of this Agreement does not violate or cause You to be in breach of any other agreement with, or of any obligation owed to, another person or company.
Upon registering with the Website, You agree to comply with all applicable local, state, federal, and international laws and regulations with respect to Your access and use of the Website. You further agree to provide accurate, current and complete information about You as requested in First Capital’s registration form. If You provide any false, inaccurate, untrue, or incomplete information, First Capital reserves the right to immediately terminate Your access and use of the Website. You agree that Your login name and password is confidential information and will be kept confidential by You. You agree not to disclose Your login name and password to any third party. If at any time You believe that Your login name and/or password has been revealed to any other party, or otherwise compromised, You agree to change Your login name and/or password immediately through the Website. First Capital shall not be liable to You or any third party for any loss or damage arising from Your failure to comply with Your registration obligations.
2. User Contents. You are responsible for any and all Contents that You upload, publish or cause to be displayed on the Website (“User Contents”). You represent and warrant that any and all User Contents are Your own original work of authorship or that You have obtained the requisite permission to upload, publish, or display the User Contents and the User Contents do not violate or infringe upon the intellectual property or other proprietary rights of any third party. By uploading, publishing, or displaying the User Contents on the Website, You retain full ownership of all trademarks, copyrights, and other proprietary rights associated with the User Contents. By uploading, publishing, or displaying the User Contents on the Website, You automatically grant First Capital an irrevocable, perpetual, non-exclusive, transferable, sublicensable, fully paid, royalty free, worldwide license to use, copy, reproduce, publicly display, reformat, translate, excerpt, and distribute the User Contents as First Capital deems necessary in its sole and absolute discretion in connection with First Capital’s operation of and business purpose for the Website. You may remove Your User Contents from the Website at any time. If You choose to remove Your User Contents, the license granted above will automatically terminate, however, First Capital may retain archived copies of Your User Contents in our database.
You are prohibited from uploading, posting, transmitting, sharing, storing, or otherwise making available any User Contents that First Capital considers, in its absolute and sole discretion, harmful, threatening, unlawful, scandalous, pornographic, profane, defamatory, infringing, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, invasive of privacy or publicity rights, hateful, or racially, ethnically or otherwise objectionable. You are also prohibited from uploading, posting, transmitting, sharing, storing, or otherwise making available User Contents that would constitute or encourage a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, federal, or international law or regulation.
First Capital reserves the right, but undertakes not duty, to review, edit, move, or delete any User Contents uploaded, published, or displayed on the Website, in First Capital’s sole and absolute discretion and without notice to You. First Capital assumes no responsibility or liability arising from (a) the deletion of or failure to store any User Contents, (b) the content of any such uploading, publishing, or displaying of the User Contents, and (c) any error, defamation, libel, slander, omission, falsehood, obscenity, pornography, profanity, danger, or inaccuracy contained in any User Contents uploaded, published, or displayed on the Website.
3. Control Over User Contents. You agree that First Capital has no control over the extent to which the User Contents may be used by any party or person once it is uploaded, published, or displayed on the Website. You agree that First Capital has not become, nor shall First Capital be deemed, a publisher of the User Contents due to First Capital’s permission for You to upload, publish, or display Your User Contents on the Website. You agree that First Capital sole function with regard to the User Contents is that of an intermediary enabling You to upload, publish, and display the User Contents on the Website.
First Capital shall not be responsible for screening, policing, editing, or monitoring Your User Contents. First Capital does not endorse, oppose, or edit any User Contents provided by You and does not make any representation with respect to, nor does it endorse the accuracy, completeness, timeliness, or reliability of any User Contents uploaded, published or displayed by You. Notwithstanding the foregoing, if First Capital determines, in its sole and absolute discretion, that any portion of the User Contents violates the terms and conditions of this Agreement, First Capital may delete the unacceptable content from Your User Contents, remove or delete the User Contents in its entirety, issue You a violation notice, and/or terminate Your use of the Website.
IV. Disclaimers; Limitation of Liability; Indemnity
1. Product Information; Opinions. Any specific commercial products or services offered by any third party on the Website does not constitute or imply its endorsement, sponsorship, veracity, quality, or recommendation by First Capital. The opinion of any third parties expressed on the Website, in the Contents, or in the User Contents located on the Website do not necessarily state or reflect those of First Capital.
2. Colors. First Capital attempts to display as accurately as possible the colors of products shown on the Website. Unfortunately, the actual colors You see will depend on Your monitor, and First Capital does not guarantee that Your monitor’s display of any color will be accurate.
3. Links To Third Party Websites and Services. First Capital does not control the availability or content of any third party websites, services, or resources to which this Website may link. Your use of these third party websites, services, or resources to which this Website may link is at Your sole risk and First Capital hereby disclaims any liability for any loss or damage suffered by You as a result of Your use of said third party websites, services or resources. Concerns regarding any such service, resource, or link should be directed to the particular third party. First Capital does not endorse, sponsor, sanction, or verify websites that link to the Website, even if First Capital’s logo or mark is used a part of the link to this Website.
4. Use of Website. First Capital DOES NOT REPRESENT OR WARRANT AND HEREBY DISCLAIMS THAT THE SOFTWARE, CONTENTS, OR OTHER MATERIALS ON THE WEBSITE ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE OR THAT THE WEBSITE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. First Capital SHALL NOT BE LIABLE FOR ANY DAMAGES TO YOUR DATA, FILES, NETWORK, INFORMATION SYSTEMS, COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO, USE OF, OR BROWSING IN THE WEBSITE OR YOUR DOWNLOADING OR UPLOADING OF ANY MATERIALS, USER CONTENTS, DATA, TEXT, IMAGES, VIDEO, OR AUDIO FROM OR TO THE WEBSITE, WHETHER THROUGH INFECTION BY A VIRUS OR OTHERWISE, UNLESS PROVEN TO BE CAUSED BY THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF First Capital.
THIS WEBSITE AND ALL CONTENTS OF THE WEBSITE ARE PROVIDED TO YOU ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, NON-INFRINGEMENT, OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. YOU ACKNOWLEDGE, BY YOUR USE OF THE WEBSITE, THAT YOUR USE OF THE WEBSITE IS AT YOUR SOLE RISK, THAT YOU ASSUME FULL RESPONSIBILITY AND LIABILITY FOR ALL COSTS ASSOCIATED WITH FAILURE OF ELECTRONIC OR MECHANICAL EQUIPMENT OR COMMUNICATION LINES, TELEPHONE OR OTHER CONNECTION PROBLEMS, OPERATOR ERRORS, SEVERE WEATHER, EARTHQUAKES, OR NATURAL DISASTERS, STRIKES, OR OTHER LABOR PROBLEMS, WARS, OR GOVERNMENTAL RESTRICTIONS, ANY BUSINESS OR OTHER ARRANGEMENTS YOU MAY ENTER INTO WITH ANOTHER USER REGISTERED ON OUR WEBSITE, AND ALL NECESSARY SERVICING OR REPAIR OF ANY ELECTRICAL, MECHANICAL, OR OTHER EQUIPMENT OR SOFTWARE YOU USE IN CONNECTION WITH YOUR USE AND ACCESS OF THE WEBSITE, UNLESS IT IS PROVEN THAT SUCH SERVICING OR REPAIR IS REQUIRED DUE TO THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF First Capital.
5. Limitation of Liability. First Capital SHALL NOT BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR DATA) ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR ACCESS TO, OR USE OF, THE WEBSITE, WITH THE DELAY OR INABILITY TO USE THE WEBSITE, OR FOR ANY INFORMATION, SERVICES, PROGRAMS, PRODUCTS, AND MATERIALS AVAILABLE THROUGH THE WEBSITE, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EVEN IF First Capital HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING, First Capital’S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO First Capital FOR YOUR USE OF AND ACCESS TO THE WEBSITE DURING THE PRIOR THREE MONTHS. THE FOREGOING LIMITATION ON PUNITIVE DAMAGES SHALL NOT APPLY TO NEW JERSEY USERS.
6. Indemnity. You agree to defend, indemnify, and hold First Capital and its subsidiaries, affiliates and all of their respective employees, agents, directors, officers, shareholders, attorneys, successors, and assigns, harmless from and against any and all claims, liabilities, judgments, proceedings, injuries, losses, damages, attorney’s fees and other costs and expenses of every kind or nature arising from or related to Your use of and access to the Website and any breach by You of the terms and conditions of this Agreement.
V. User Comments
VI. Term; Termination
This Agreement is effective upon your access and use of the Website unless and until terminated by You or First Capital. This Agreement will automatically terminate if You did not accept the terms and conditions of this Agreement. You may terminate this Agreement at any time upon delivery of written notice to First Capital, provided that any such termination will have no effect on Your liability as a result of Your use of and/or access to the Website and for all amounts owing to First Capital as of the date of such termination. First Capital may also terminate this Agreement at any time and without notice if, in First Capital’s sole and absolute discretion, You failed to comply with any term or provision of this Agreement. First Capital reserves the right, without prior notice and in its sole and absolute discretion, to change, suspend, discontinue, or limit Your access to any aspect of the Website at any time that First Capital has reason to believe that You have violated the terms and conditions of this Agreement. Upon termination of this Agreement by either You or First Capital, You must promptly destroy all materials downloaded or otherwise obtained from the Website, as well as all copies of such material, whether made under the terms of this Agreement or otherwise.
1. Injunctive Relief. You acknowledge that any breach, threatened or actual, of this Agreement will cause irreparable injury to First Capital, such injury would not be quantifiable in monetary damages, and First Capital would not have an adequate remedy at law. You therefore agree that First Capital shall be entitled, in addition to other available remedies, to seek and be awarded an injunction or other appropriate equitable relief from a court of competent jurisdiction restraining any breach, threatened or actual, of Your obligations under any provision of this Agreement. Accordingly, You hereby waive any requirement that First Capital post any bond or other security in the event any injunctive or equitable relief is sought by or awarded to First Capital to enforce any provision of this Agreement.
2. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, such determination shall not affect the validity or enforceability of any other part or provision of this Agreement.
3. Waiver. The waiver by First Capital of any breach of any provision of this Agreement by You shall not be construed to be either a waiver of First Capital’s rights regarding any succeeding breach of any such provision by You or a waiver of the provision itself.
4. Entire Agreement. This Agreement constitutes the entire agreement between You and First Capital with respect to this subject matter and supersedes all previous proposals, both oral and written, negotiations, representations, commitments, writings and all other communications between You and First Capital.
5. Choice of Law and Jurisdiction. First Capital makes no representation that the Website is appropriate or available for use in other locations outside the United States, and access to the Website from states, territories, or nations where any aspect of the Website is illegal is prohibited. This Agreement shall be construed in accordance with the laws of New Jersey, without regard to any conflict of law provisions. Any dispute arising under this Agreement shall be resolved exclusively by the state or federal courts of the State of New Jersey. You hereby expressly agree to submit to the personal jurisdiction of such courts and waive any objection to the venue in such courts. You also acknowledge and agree that any applicable state law implementation of the Uniform Computer Information Transactions Act (including any available remedies or laws) shall not apply to this Agreement and is hereby disclaimed.
6. Modifications. First Capital may from time to time change the terms and condition that govern Your use and access of the Website. First Capital will post these changes in this Agreement. Your use and access of the Website following any such change constitutes Your agreement to follow and be legally bound by the terms and conditions as modified. First Capital may change, move, or delete portions of the Website, or may add to the Website from time to time.
7. No Assignment. This Agreement is personal to You, and You may not assign Your rights or obligations to any other person or entity without First Capital’s prior written consent.
8. Reservation of Rights. Any and all rights not express granted in this Agreement are hereby reserved by First Capital.
9. Contact. Any questions or comments concerning the Website should be sent via email to at TeamAtik@firstcapitalmtg.com.